RUBBLE IN THE COURT - Sanjay Singhvi

THE recent press conference held by the four senior-most judges of the Supreme Court (bar the Chief Justice) has stirred up many opinions. All sorts of knowledgeable and ignoble comments have been bandied about on this question on the social media. Let us examine this question dispassionately and try and see what are the real questions thrown up?

If we actually see what the judges said, and we only have to see the singular, as only Justice Jasti Chellameshwar made the initial statement on behalf of the judges, all that was said was that the administration of justice in the Supreme Court was not being done properly. It was further stated that the four judges had raised many questions in the past few months but had not been able to get a satisfactory solution. Justice Chellameshwar said that they had met the Chief Justice that very morning but there too there had not been any satisfactory solution. They were therefore making this appeal to the nation to step in and save the institution of the Supreme Court and see that the adminsitration of justice was properly done.

In Justice Chellameshwar’s initial statement there was no mention of allotment of cases or of the particular case of Judge Loya. However, some of the replies given by the judges to later questions in the interview showed that this was also one of the concerns.

There is no law which governs the allotment of cases to various judges of the Supreme Court. The Chief Justice, as “Master of the Roster” has the privilege of allotting cases to different benches. If the allotments are predictable, this will lead to “forum shopping” - meaning that litigants will be able to manipulate so that their cases come before benches which they have reason to believe are more favourable to them. There a series of measures to avoid forum shopping. The benches are shuffled in regular intervals. The assignments to benches (at least in various high courts) are on the basis of the nature of the matter. For example, matters pertaining to tenants and landlords will be assigned to a particular bench, matters pertaining to labour to another, matters pertaining to family (divorce, separation, maintenance, etc) to yet another and so on. These assignments are themselves shuffled from time to time. This shuffling of benches and of assignments is done by the Chief Justice of that particular court using the privilege of being “Master of the Roster”. It must be noted that the Chief Justice is not, in her or his judicial capacity, any higher than any of the other judges of that court. However, it is in the very nature of having random benches and random assignments that such benches and assignments be constituted by only one person. That is the task of the Chief Justice. This is a very delicate task and one that must be done without bias. Further, it must be seen by the public at large that this is being done without bias as otherwise, the public will tend to lose faith in the judiciary.

In such a situation, the fact that four of the judges, and not just any judges but the four senior-most after the Chief Justice, have gone public with an allegation which can have no other meaning but that the assignment of benches and cases is not being done in an unbiased manner, is of grave consequence. Many comments have been made about how junior judges have got to hear PILs and not senior judges. This is not the question. The question is clearly that the assignment of benches and cases, the privilege of the Chief Justice is not being seen to have been done in an unbiased manner. It is being seen to be biased to such an extent that the next four senior-most judges have come out into the open and held an unprecedented press conference to appeal to the people of India to save the Supreme Court.

More is at stake in this question than just the administration of the Supreme Court. The Supreme Court is the last legal resort for the citizens of this country. If the Supreme Court is biased even to the smallest degree this can be utilised by those who have the wherewithal to utilise such a bias. This will prejudice not only the rights of the weak as against the strong, the poor as against the rich, the socially backward as against the ruling sections, but also rights of the people as against the state. What happens if the Supreme Court is biased even to the smallest degree? Will it not be easy for the executive to use this bias to obtain orders in their favour? The whole independence of the judiciary is at stake if the Supreme Court is biased even to the smallest degree.

All modern bourgeois constitutions divide the state into the legislature, the executive and the judiciary. As communists, we believe in doing away with the artificial separation between the legislature and the executive. This means that the people will directly elect all executive officers. Today the Municipal Commissioner has greater powers that the elected councillors. We want that the Municipal Commissioner (and likewise the Police Commissioner, the Health Commissioner, etc) all be elected and answerable to the people. However, even in such a system the judiciary may have to be separated from the executive.

No doubt, in an advanced socialist society, there will not be antagonistic contradictions inside such a society. However, as long as there are different experiences of different people non-antagonistic contradictions will exist. Even such non-antagonistic contradictions will lead to disputes. There will have to be dispute resolution mechanisms in such a society – whether we call them as judiciary or by any other name. As long as there is an adversarial system to resolve such disputes (hearing both sides and allowing both sides to question the facts and arguments of the other and only then arriving at a reasoned judgement on the basis of rules and laws accepted), there will have to be an unbiased panel of judges.

Hence even in an advanced socialist society (possibly even in a communist society) there will have to be unbiased judges. Another thing to remember about bias. It is not sufficient that the result is actually without bias. Bias is not something which can always be seen. Hence, what is important is the implementation of rules and customs which will assure the people at large that there is no bias. This delineates the importance of the independence of the judiciary.

What is most troubling in the recent happenings in the Supreme Court is that there have been happenings which have laid the Chief Justice open to the charge of being biased. Firstly, in the case of the Medical admissions (also known as the MCI case), where there were allegations in which the name of the Chief Justice was involved, he made extraordinary efforts to have the case heard before his own bench even after one of the cases in this matter was being heard by another bench. Further, the cases of Judge Loya and some other cases were assigned to benches about which allegations were made that they were close to the Government.

No doubt all of this is in the nature of allegations. But an allegation is sufficient to create a doubt of bias. The most basic principles of Natural Justice that the other side must be heard and that no person shall be a judge in his own cause are based on doubts of bias. There may well be a litigant who will truthfully represent both his case and his opponents. But the rules of natural justice require that the opponent must also be heard because there is always a doubt about the bias of each party in their own favour. No doubt there may be many “Vikramadityas” who will judge even their children and themselves in an unbiased manner but the doubt of their being biased will always remain.

Most striking are the extraordinary efforts being made by the Chief Justice to have the allotment of cases as per his own wishes. No doubt the Chief Justice, as the master of the roster has the right to make allotments as per her or his wishes. However the very fact that a particular Chief Justice insists on making a particular allotment itself lays that decision open to an allegation of bias.

What is way out? Today technology is very advanced. There is no reason why there should not be a random way of selection of benches and of allotting assignments or matters. The Chief Justice can then be unburdened of this onerous responsibility. Certainly a software can be worked out which will be free of bias. The random system can be refined. There can maybe, be one veto to each party when the case is allotted without question (rather like the manner of selection of jurors in the USA).

But this will never happen in our system where the clear political, social and economic hegemony of the Adanis and the Ambanis has to be protected at all costs while at the same time maintaining the charade of democracy. This is what Lenin had talked about as the main reason for corruption in bourgeois democracy – maintaining the charade of democracy while actually allowing a small coterie from a particular class and their cronies to rule for their own benefits. As long as this system exists, we can never really expect an unbiased judiciary or a fair system of administration of justice. 